Everything is Bigger in Texas, Including Punishments
- UNT Dallas College of Law
- 1 day ago
- 11 min read
Jalen North
Staff Editor (2025-2026)
We Are Not a People Who Deserves What the Criminal Justice System Tells Us About Ourselves
In Texas, African Americans represent 12% of the population.¹ Despite that fraction, African Americans represent a third of the inmates in Texas Department of Criminal Justice (TDCJ) facilities.² We learn from a young age that immoral criminals go to jail. TDCJ’s inmate population tells us, then, that a third of the immoral criminals in Texas are African American. Of the total Texas population, African Americans number 3,552,997, and Latinos represent 11,441,717. Together, African Americans and Latinos represent 14,994,714 people, 51% of Texas’ population. TDCJ reported 43,546 African American inmates and 45,161 Latino inmates on hand in 2024. That is 88,707 of the total 134,164 inmates, which is 66%.
TDCJ reports that African Americans and Latinos make up two-thirds of our incarcerated population, despite representing a significantly smaller share of Texas’s overall population.³ The prosecutorial discretion involved in deciding what punishment a defendant receives and the unfair use of a defendant’s criminal history in enhancing their punishment reflect the unfair processes that contribute to mass incarceration in Texas. TDCJ’s practices reflect these dynamics in the disproportionately high incarceration rates for African American and Latino individuals.
A Look Into Texas’s Punishment Scheme
Texas divides offenses into felonies and misdemeanors.⁴ Misdemeanors belong to three classes: A, B, and C.⁵ Every offense above a Class C misdemeanor carries a legal disadvantage.⁶ Felonies belong to five classes: (1) state jail felonies carrying a mandatory sentence of 180 days to 2 years; (2) 3rd degree felonies carrying a mandatory sentence of 2 to 10 years; (3) 2nd degree felonies carrying a mandatory sentence of 2 to 20 years; (4) 1st degree felonies carrying a mandatory sentence of 5 to 99 years; and (5) capital felonies carrying mandatory sentences of life, life without parole, or the death penalty.⁷ Moreover, almost every punishment can be enhanced by Texas’s repeat and habitual offender provisions.⁸ A repeat offender has one prior conviction; a habitual offender has multiple prior convictions.⁹ State jail felonies can receive enhanced punishments as 3rd degree felonies if the defendant used a deadly weapon or if they have prior convictions.¹⁰ Further, the punishment scheme provides that repeat offenders on trial for a 1st, 2nd, or 3rd degree felony, after conviction, will have a 3rd degree felony punished as a 2nd degree felony, a 2nd degree felony punished as a 1st degree felony, and a 1st degree felony will carry an enhanced sentencing range of 15 years to life.¹¹ A habitual offender, after their third felony conviction, receives a mandatory sentence of 25 years to life.¹² State jail felonies and misdemeanors have similar repeat and habitual offender provisions providing for enhanced punishments.¹³
Mandatory Punishments Grant Prosecutorial Discretion at the Expense of Judicial Discretion
The mandated punishments in the sentencing scheme grant significant discretion to prosecutors, contributing to the overrepresentation of minority inmates in TDCJ. “Prosecutors do not charge all defendants who are eligible for mandatory minimum sentences with crimes triggering those sentences. If the prosecutor charges a crime carrying a mandatory minimum sentence, the judge has no discretion in most jurisdictions to impose a lower sentence.”¹⁴ For example, prosecutors can charge some criminal conduct, like assault and its variants, as either a misdemeanor or a felony.¹⁵ In Texas, simple assault is a class A misdemeanor, but it can become a felony for the same conduct under certain circumstances, like family violence or assaulting an officer. The charge a defendant receives does not always reflect what they actually did. So, depending on the prosecutor, results for similar defendants can vary.
Plea bargaining gives prosecutors the sole discretion to decide a defendant’s punishment. Over 90% of felony convictions in Texas result from guilty pleas.¹⁶ “If the prosecutor is aggressive, they may threaten more severe charges or a steeper trial penalty unless the defendant accepts a harsh deal. If the prosecutor is lazy, they may offer better terms after the defense lawyer threatens to fight the case. If the prosecutor has a heart, they may be swayed to offer a better deal by the defense lawyer's equities pitch.”¹⁷ Defense lawyers often lack the information or resources to assess the government's case and accurately predict trial outcomes.¹⁸ Aggressive trial penalties are often too steep for defendants, meaning prosecutors, through the coercive nature of plea bargaining, more than any other part of the criminal justice system, decide how defendants are punished. Seeing the discretion prosecutors have, and the numerous opportunities to exercise it, “it is undeniable that many African Americans and Latinos in our nation’s prisons are not there only because of their criminal acts, but also because of the discretionary decisions made at various stages of the criminal process.”¹⁹ We can see how racial disparities among similar defendants occur: to the extent that a defendant looks and behaves like a prosecutor, a prosecutor could be more inclined to leniency.²⁰ Although race rarely becomes a conscious consideration, a prosecutor may be more inclined to treat a relatable defendant more favorably than other similar defendants.²¹
Having a Prior Conviction Means the Defendant’s Current Conduct Does Not Matter
Additionally, the way prior convictions are used against defendants removes judicial discretion. In Texas, to show that a defendant has a prior conviction, the State needs only to establish that a conviction exists and that the defendant is linked to it.²² No specific document or mode of proof is required.²³ An admission by the defendant, testimonial evidence, documentary proof, or even circumstantial evidence could suffice.²⁴ Despite restrictions on the use of state jail felonies for enhancement purposes, there is no time limitation on the use of prior felony convictions.²⁵ Juvenile convictions can be used to enhance punishments.²⁶ Probated and paroled sentences are prior convictions. “The conviction offense is an imperfect signal, at best, of what the prisoner actually did.”²⁷ Courts receive limited information on a defendant’s prior convictions. Often, rap sheets only list the defendant’s arrest date, the charges, and the case’s disposition. Yet, the key assumption in relying on past convictions is that a prior conviction provides valuable information about the convicted person.²⁸ Judges make no consideration of the prior conviction beyond the fact that the conviction exists and that the defendant is probably who received it. Despite their limited evidentiary value, using prior convictions to enhance sentences causes large leaps in sentencing exposure that defendants often cannot conceive of. Shocked defendants frequently challenge the constitutionality of their disproportionate sentences under the Eighth Amendment. Courts do not support these arguments because almost any sentence imposed within the statutory punishment range is not cruel or unusual.²⁹ Courts apply the Eighth Amendment as strictly as they apply sentence enhancements in the penal code. The lack of discretion granted to judges to tailor specific sentences directly leads to unfair sentences.
Mechanical application of repeat and habitual offender provisions of the penal code further removes judicial discretion by making the defendant’s prior conduct and their current conviction irrelevant. Judges input a prior conviction, and the punishment scheme outputs an enhanced sentence. In Texas, that places a heavy burden on defendants. “Having twice imprisoned [Defendant] for felonies, Texas was entitled to place upon [Defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the state.”³⁰ The State imposes the sentences to reflect not only the current offense, but also gives them “in light of” prior offenses.³¹ The main goal is to deter repeat offenders and segregate habitual offenders.³² Relying on prior convictions creates problems because a defendant with prior convictions has already received their punishment for the prior offense, and imposing a recidivist penalty for the current conduct results in an arbitrary, unearned punishment. Moreover, when we impose a recidivist penalty, it has not deterred the convict, as they have, in fact, reoffended.³³
Are we comfortable with using an unfair, discretionary criminal process to impose an unfair, non-discretionary sentence, given what TDCJ tells us about African American and Latino inmates? “Our system’s method for counting prior convictions also acts as a force multiplier for racial discrimination. It renders the discretionary choices of past government actors decisive for how a person is processed in future cases. And, in the criminal justice system, discretion predictably works against minority groups.”³⁴
Reforming the System
Mandatory minimum punishments and habitual offender statutes grant prosecutors significant discretion over what to charge defendants with. Local reforms, instead of top-down reforms, are the likely solution to aggressive prosecutors.³⁵ Prosecutors have many political incentives to be harsh toward defendants. For example, because prosecutors are elected in Texas, they must appear tough on crime. The political ramifications for a soft prosecutor are too severe in this State. That means prosecutors in Texas avoid The Willie Horton Effect like the plague. The fallout from convicting an innocent person is invisible compared to that from being too lenient with a defendant who should be in jail.³⁶ Further, the State pays to incarcerate defendants, not the county. “Prosecutors get all the tough-on-crime political benefit of sending someone to prison, but the costs of the incarceration are foisted³⁷ onto the state;” and “that the alternatives—misdemeanor probation or county jail time—are paid for by the county only exacerbates the problem. For the prosecutor, leniency is actually more expensive than severity, and severity is practically free.”³⁸
The political incentives to be tough on crime, predictably, disproportionately affect minority defendants. People want to see offenders punished to ensure their own safety, but they do not want to see their friends, neighbors, or family members suffer the costs of avoidable or unjust punishment.³⁹ Historically, Irish, Italian, and other White immigrant groups lived in high-crime, urban areas, and had some control over police and local prosecutors.⁴⁰ As those groups moved out of urban areas and into suburbs, they retained their power over police and prosecutors but removed themselves from the consequences of their policy choices.⁴¹ This left minority defendants in urban areas subject to all of the harsh crime policies created by new suburbanites.⁴² To effectively reform our mass incarceration problem, we need to address the political incentives that allow prosecutors to be overly aggressive. Some states have adopted cost-shifting measures to make counties pay for the defendants they incarcerate, with mixed results.⁴³ The main problem was circumvention.⁴⁴ Following the enactment of a South Dakota bill that was intended to reduce the prison population, the rate of felony convictions rose to 25%, threatening the previously successful efforts to decrease incarceration levels.⁴⁵ The only explanation was that prosecutors were using their unfettered discretion to charge more felonies.⁴⁶ Attempts to remove political incentives for prosecutors have been only mildly successful, but more needs to be done in the future. Additionally, finding ways to safeguard plea bargaining and curtailing some prosecutorial discretion will also help address the contributions prosecutors make to mass incarceration.
Moreover, because judges mechanically apply prior convictions to current punishments, their discretion to tailor individual sentences for defendants is destroyed. This also contributes to the overrepresentation of minority inmates in TDCJ. The simple response is to abolish mandatory minimums and reform our habitual offender statutes to require judicial discretion, tailoring a specific sentence to the defendant. By allowing judges to tailor specific sentences considering all relevant facts, the punishment scheme would better reflect our current retributivist punishment paradigm by ensuring that the defendant actually receives the sentence they deserve.
Texas allows jury sentencing at the defendant’s election.⁴⁷ Some scholars have suggested that every case should require a mandatory jury sentence.⁴⁸ Studies have shown that juries punish more uniformly and less punitively than judges.⁴⁹ Judges in Texas are elected, and like prosecutors, they must appear “tough on crime.” By moving to required jury sentencing in all cases, we would remove the political incentives for unfair sentences. Moreover, requiring specific, tailored sentences, requiring jury sentences in all cases would better reflect our retributivist punishment goals by entrusting the same jury that found the defendant guilty to determine their punishment. “Jurors are in a better position than judges not only to take the measure of a crime, but also to take the measure of its proportionate retribution.”⁵⁰
Curtailing prosecutorial discretion, and a transparent judicial or jury sentencing process, without a minimum punishment, and subject to further judicial review, will reflect a fair and legitimate criminal sentencing process. Further, we must address the political incentives contributing to unfair sentences. The best way to bring about reform is to start locally. We must vote for policies that ensure fair sentencing, and for politicians who support them. We must continue to make small, incremental changes that will have the greatest impact in the future.
Sources:
[1] U.S. Census Bureau, 2020 Census (2020) (reporting that the total Texas population was 29,145,505 of which, 3,552,997 (12.19%) were African American).
[2] Tex. Dep’t of Crim. Just., Statistical Report Fiscal Year 2024 (2024) (reporting that of the 134,164 total inmates on hand, 43,546 were African American).
[3] U.S. Census Bureau, supra note 1; Tex. Dep’t of Crim. Just., supra note 2.
[4] Tex. Penal Code Ann. § 12.02.
[5] Id. § 12.03.
[6] Id. § 12.03(c).
[7] Id. § 12.42.
[8] Id. §§ 12.42, 12.425, 12.43.
[9] Id. §§ 12.42(a)–(d).
[10] Id. § 12.35(c).
[11] Id. §§ 12.42(a)–(c).
[12] Id. § 12.42(d).
[13] Id. §§ 12.425, 12.43.
[14] Am. Bar Ass’n, Justice Kennedy Commission 27 (2004).
[15] See Tex. Penal Code Ann. § 22.01(b).
[16] Texas Off of Ct. Admin., Annual Statistical Report for the Texas Judiciary Fiscal Year 2023, at 60 (2023), https://www.txcourts.gov/media/1459429/ar-statistical-fy23.pdf.
[17] Eric S. Fish, The Paradox of Criminal History, 42 Cardozo L. Rev. 1373, 1393 (2021).
[18] Susan R. Klein, et al., Waiving the Criminal Justice System: An Empirical and Constitutional Analysis, 52 Am. Crim. L. Rev. 73, 75–76 (2015).
[19] Am. Bar Ass’n, supra note 14, at 53.
[20] Id.
[21] Id.
[22] Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
[23] Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d.).
[24] Id.
[25] Tex. Penal Code Ann. § 12.42.
[26] Hestand v. State, 601 S.W.3d 67, 70 (Tex. App.—Fort Worth 2020, no pet.).
[27] John Pfaff, Locked in: The True Causes of Mass Incarceration and How to Achieve Real Reform 42 (Basic Books, 2017) (explaining how the facts of prior convictions are often bare).
[28] Fish, supra note 17, at 1393 (explaining the justifications for the reliance on criminal history).
[29] See State v. Simpson, 488 S.W.3d 318, 324 (Tex. Crim. App. 2016) (evidence of the defendant’s minimal role in the crime, his age and circumstances of his prior convictions, and his need for drug treatment did not substantiate his claim that his sentence was unconstitutional); Lerma v. State, No. 13-24-00565-CR, 2025 WL 2475128, at *5 (Tex. App.—Corpus Christi–Edinburg Aug. 28, 2025, no pet. h.) (upholding a life sentence for a third-degree felony with two prior convictions); Bolar v. State, 625 S.W.3d 659, 672 (Tex. App.—Fort Worth 2021, no pet.).
[30] Bolar, 625 S.W.3d at 672.
[31] Winchester v. State, 246 S.W.3d 286, 290 (Tex. App.—Amarillo 2008, pet. ref’d).
[32] Rummel v. Estelle, 445 U.S. 263, 284 (1980).
[33] Guha Krishnamurthi, Against the Recidivist Premium, 98 Tul. L. Rev. 411, 450 (2024).
[34] Fish, supra note 17, at 1438.
[35] Pfaff, supra note 27, at 164.
[36] Id. at 168.
[37] The word foisted means to impose an unwelcome burden.
[38] Pfaff, supra note 27, at 143.
[39] Id. at 169.
[40] Id. at 170.
[41] Id. at 163.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Tex. Code Crim. Proc. Ann. art. 37.07.
[48] See Jen Jenkins, Judge v. Jury: Who Is Better at Fitting the Punishment to the Crime?, 51 Am. J. Crim. L. 56 (2025); Morris B. Hoffman, The Case for Jury Sentencing, 52 Duke L. J. 951 (2003).
[49] Jenkins, supra note 48, at 61–62.
[50] Hoffman, supra note 48, at 1010.
